Attorney Client Privilege With Board Of Directors In Utah
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FAQ
Which of the following may not be protected under the attorney-client privilege? A client who orally confesses to a crime. Correct!
Crime or Fraud Exception. If a client seeks advice from an attorney to assist with the furtherance of a crime or fraud or the post-commission concealment of the crime or fraud, then the communication is not privileged.
Attorney Client Privilege (Gold Standard/SUWA) -305(18) The attorney-client privilege protects information given by a client to an attorney that is “necessary to obtain informed legal advice—which might not have been made absent the privilege.
Since engagement agreements may not be protected by attorney-client privilege, an attorney must be careful not to be overly detailed in the description of the scope of services.
Board minutes often contain information that is subject to the attorney-client privilege and that directors may prefer to keep confidential. However, most jurisdictions allow stockholders to inspect corporate books and records, including board minutes.
No matter how the attorney-client privilege is articulated, there are four basic elements necessary to establish its existence: (1) a communication; (2) made between privileged persons; (3) in confidence; (4) for the purpose of seeking, obtaining or providing legal assistance to the client.
A lawyer serving as an outside director has the same duty of care as any other outside director, and the same exposure to liability. The lawyer's skill and knowledge must be brought into the boardroom in the interest of the corporation.
The privilege extends only to communications that the client intends to be confidential. Communications made in non-private settings, or in the presence of third persons unnecessary to accomplish the purpose for which the attorney was consulted, are not confidential and are not protected by the privilege.
Who Should Not Serve On A Board Of Directors? Those Who Lack Objectivity. People Who Are All Talk And No Action. Those Who Are Conflict-Averse. People Who Don't Play Well With Others. Those Who Are Greedy. People Who Are Resistant To Change. People Who Are Not Team Players. People Who Don't Believe in the Mission.
Lawyers with a broad skill-set should not be discounted as potential non-executive directors. There is room for lawyers in this role, but only those lawyers who have all the skills that the board is looking for.
